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Stephen A. Cullinan v. Claudia E. Fehrenbacher

June 4, 2012

STEPHEN A. CULLINAN,
PLAINTIFF-APPELLEE,
v.
CLAUDIA E. FEHRENBACHER, EXECUTOR OF THE ESTATE OF RICHARD G. FEHRENBACHER, DECEASED, AND FEHRENBACHER AND FEHRENBACHER, P.C., AN ILLINOIS CORPORATION,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois Circuit No. 09-L-400 Honorable Scott A. Shore and Stephen Kouri, Judges, Presiding.

The opinion of the court was delivered by: Justice Carter

JUSTICE CARTER delivered the judgment of the court, with opinion.

Justices O'Brien and Wright concurred in the judgment and opinion.

OPINION

¶ 1 The plaintiff, Dr. Stephen A. Cullinan, sued the defendants, law firm Fehrenbacher & Fehrenbacher, P.C., and Claudia E. Fehrenbacher, who is the executor of the estate of deceased attorney Richard G. Fehrenbacher, alleging legal malpractice. During pretrial matters, the defendants filed, inter alia, a motion to stay the case pending the resolution of several other cases between the plaintiff and his deceased wife's estate and living trust. After a hearing, the circuit court denied the defendants' motion to stay. On appeal, the defendants argue that the court erred when it denied the motion to stay essentially because the plaintiff failed to establish that he suffered "actual damages." We affirm.

¶ 2 FACTS

¶ 3 Before they married in 1995, the plaintiff and Theresa Falcon entered into an antenuptial agreement in which they agreed upon a certain distribution of assets in the event of divorce or death.

¶ 4 In 2007, Theresa was diagnosed with cancer. In 2008, attorney Richard G. Fehrenbacher was retained regarding estate planning, which resulted in the preparation of numerous documents, including a joint trust agreement and several amendments thereto. Theresa died in 2009.

¶ 5 In December 2009, the plaintiff filed this action against attorney Fehrenbacher and his law firm, alleging legal malpractice, and claiming injuries in excess of $50,000, including the loss of certain assets to Theresa and her living trust. Shortly thereafter, the plaintiff also filed actions against Theresa's estate and her living trust, claiming, inter alia, that Theresa breached the antenuptial agreement. The plaintiff alleged that he suffered injuries in excess of $50,000, including the loss of certain assets to Theresa and her living trust.

¶ 6 Numerous pretrial motions were filed in this legal malpractice action, including the defendants' motion for summary judgment, which the circuit court denied. After the court also denied the defendants' motion for reconsideration or, alternatively, dismissal without prejudice, the defendants filed a motion to stay the action. Throughout these motions, the defendants argued that the plaintiff's claim of "actual damages" was purely speculative, as the outcome of the legal malpractice action depended on the resolution of the actions against Theresa's estate and living trust.

¶ 7 After a hearing on the motion to stay, the court initially stated that it was going to stay the trial but allow discovery to proceed:

"Balancing the interests of the parties and the law applicable, it's the finding of this Court that the ultimate determination of this case, Cullinan v. Fehrenbacher, should be stayed, that the case should not go to trial until such time as these other issues, mitigate damages or even relieve the defense of liability, can be resolved. However, it would also appear that the very same issues are going to be subject to discovery in what's been termed the estate litigation vis-a-vis the legal malpractice litigation, and, therefore, it's my determination that the parties can and should be permitted to participate in all discovery having to do with all issues pertaining to the ultimate conclusion of the estate litigation as well as the legal malpractice litigation.

I'm only entering this ruling though in the context of the legal malpractice litigation because that is the only case that is before me at this time. The ultimate result is that trial is indefinitely stayed and cannot be set until such time as there is a determination by a judge that the resolution of the estate litigation has been brought to its final resolution or sufficiently final resolution to permit a quantification of the damages to which a plaintiff would be entitled in this legal malpractice litigation if liability is shown and that discovery is not stayed giving the parties an opportunity to participate in all pending discovery."

However, defense counsel contended that the defendants' motion was not severable; that it was requesting the action to be stayed in its entirety, including discovery. After a brief discussion with defense counsel, the court decided to deny the motion to stay in ...


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